Hoover Institute Fellow Frames RTTT Fight in Federalism Context

Hoover Institute Fellow David Davenport frames the Race to the Top battle in a larger federalism context in a Forbes article:

You may wonder, for example, how K-12 education, a classic state and local policy matter, has become federalized through “No Child Left Behind” and “Race to the Top” reform programs.  The answer is:  through the Congressional spending power.  The feds, in effect, bribe states to follow their ideas about education reform by putting out precious grant money to cash-starved states and school districts.  As some of the justices asked in oral argument, how could states not feel “coerced” to follow federal rules at the risk of losing the largest grant program they now receive from Washington?

Tallying our inventory of federal challenges to state power, so far we have the most important commerce clause litigation since the New Deal, and the largest case questioning possible federal coercion of states in 25 years.  Then comes the Arizona immigration case, in which the federal government has deployed its preemption power in an attempt to stop Arizona from increasing enforcement against illegal immigration, an area in which the federal government has taken the lead but, by all accounts, has woefully underperformed.

Here the federal government’s power comes from the supremacy clause, establishing that federal law is the supreme law of the land.  But states are still free to operate in those areas unless federal law “preempts” the field and states are not acting in conflict with the federal approach.  As Arizona’s attorney, Paul Clement, pointed out:  “This is another federalism case.  This is not all about immigration.  It’s really about the relationship between the federal government and state government.”

Next up, perhaps next term, will be same sex marriage cases, which again raise fundamental questions of federal and state power.  Who decides what the law of marriage is, what marriage itself is?  Is that a question for states or for the federal government?  And surely someone will challenge the federal takeover of K-12 education through reform and testing laws such as “No Child Left Behind” and “Race to the Top” as unlawful exercises of “coercive” federal spending powers.

Beginning with the “New Deal” legislation of the 1930’s, we have witnessed a steady expansion of federal power, much of it at the expense of state sovereignty.  We may well have reached a tipping point where the Supreme Court will say “enough”, and in at least one of these cases—healthcare, immigration, same sex marriage—federal power will be pushed back.

The whole article is well worth reading.